Arida v Arida (No 2)

THE COURT: The Court delivered judgment in this appeal on 26 June 2015. [1] The appeal was allowed and the parties were directed to bring in short minutes of order giving effect to the reasons for judgment. In the absence of agreement each party was directed to file proposed short minutes of order, together with brief written submissions.

The appellants propose the following orders:

It was accepted by the appellants that the sum in dispute was $454,087.46. [2] The primary Judge (Slattery J) ordered that the sum of $479,862.82 held by the trustees for sale be paid to the respondent. [3] There appears to be no dispute that this amount was paid to the respondent on 22 May 2014.

The respondent does not dispute that in consequence of the appeal being allowed he is obliged to repay the sum of $454,087.46 to the appellants.

The parties are in dispute as to whether the respondent should be required to pay interest on the sum to be repaid. The appellants rely on the general principle that a party who has paid money pursuant to a judgment or court order which is later set aside has a common law right to restitution of the money so paid, with interest. [4] They point out that the practice in this Court is to award restitutionary interest at the rates payable on judgments, unless there are special circumstances. [5]

The respondent has not advanced any cogent reason why he should not be required to pay interest on the money that was paid to him pursuant to an order of the Court which is now to be set aside. The orders should therefore provide for the payment of interest by the respondent on the amount to be repaid.

The appellants’ proposed Order 3a requires the respondent to pay $510,282.34. This sum comprises $454,087.46 plus $56,194.88, being interest on $454,087.46 at the rates applicable to judgment debts under s 101 of the Civil Procedure Act 2005 (NSW) for the period from 25 January 2014 until 10 July 2015.

The appellants’ written submissions do not explain why interest is claimed from 25 January 2014, rather than the date the trustees paid the moneys held by them to the respondent (22 May 2014). However, the explanation is presumably that settlement of the purchase of the Church Street Property took place on 24 January 2014.

Since the respondent had use of the money only from 22 May 2014, interest should run from the following day. On the calculations provided by the appellants, interest on $454,087.46 at the prescribed rates for the period 23 May 2014 to 10 July 2015 is $43,716.81. Thus the amount inclusive of interest payable by the respondent as at 10 July 2015 is $497,804.27.

In the Principal Judgment, an order was made dismissing the appellants’ summons for leave to appeal filed on 27 June 2014. There is no reason why the appellants should not pay the respondent’s costs of that summons.

Since an order has already been made allowing the appeal, it is unnecessary to make that order again. Thus the orders that should be made are as follows: